UPC Telekabel—ISPs Can Be Subject To Non-specific Site Blocking ...

What else should lawyers look out for in this area?

And what of the prospect of an internet user supposedly asserting his rights? The English courts have experience here too. In Twentieth Century Fox Film Corporation v British Telecommunications plc (No 2) [2011] EWHC 2714 (Ch), [2012] 1 All ER 869, a BT subscriber, Mr McMahon, who said he would be adversely affected by the proposed site blocking order, applied to be joined as an additional respondent to the proceedings. He wasn’t joined (as the ‘Casual Editor’ of Newzbin2, some of the evidence he relied on was treated as inaccurate) but he made some submissions with regards to the form of order—he wanted one that was more targeted at infringers. He proposed a system of warning notices to subscribers inspired by the Digital Economy Act 2010 (DEA 2010) and Ofcom’s draft Initial Obligations Code. This was refused by Arnold J who doubted that an order in that form would comply with the UK’s obligations under the InfoSoc Directive, art 8(3).

DEA 2010 sets out a procedure for tackling copyright infringement. DEA 2010 provisions create the new obligations for ISPs referred to above and referred to as the ‘initial obligations’. They are beyond detailed discussion here but see our Practice Note:Digital Economy Act 2010 (contained in a subscription only service in Lexis®PSL IP & IT)

DEA 2010, s 17 allows for the passing of regulations that would force ISPs to disconnect their customers if copyright owners could show that a subscriber was using their account to infringe copyright. The government has subsequently indicated that it will not enforce this provision. Section 27 of the Deregulation Bill repeals the government’s power to make provision for blocking injunctions.

At the time DEA 2010, s 17 was introduced, CDPA 1988, s 97A claims were in their infancy and the government considers now that a combination of CDPA 1988, s 97A, the City of London Police IP Crime Unit, the Intellectual Property Office’s mediation service and reforms to the Intellectual Property Enterprise Court all provide support for businesses looking to protect and enforce their IP rights (see Report: Government response to CMS Select Committee report on supporting the creative economy).

Arguably, the way ahead is that one or a mix of these organisations is used to combat internet piracy, with ISPs (reluctantly perhaps) in the lead and to some extent together with rights holders, funding the way. There is increasing pressure on ISPs to take a more prominent role in discouraging copyright infringement and pushing on with a Voluntary Copyright Alert Programme in the UK, referred to recently in the House of Commons, will help achieve this.

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